The Key Issue In the Supreme Court's ObamaCare Verdict

Opponents of ObamaCare were elated on Tuesday as early questions by U.S. Supreme Court justices revealed skepticism about the constitutionality of the controversial individual mandate.

But as the arguments drew to a close, it also was clear that serious questions still remained in the mind of at least one key justice -- Anthony Kennedy -- who is expected to cast the deciding vote on the question.

Justice Kennedy asked early during the argument: “And here the government is saying that the Federal Government has a duty to tell the individual citizen that it must act, and that is different from what we have in previous cases, and that changes the relationship of the Federal Government to the individual in a very fundamental way.”

Those key words – “changes the relationship of the Federal Government to the individual” – indicates Kennedy has serious concerns about the impact of the sweeping health overhaul law. But it’s important to listen to the whole two-hour session and, toward the end, Kennedy suggests that he could also be convinced that “the insurance market is unique.”

Kennedy asked about “the young person who is uninsured.” He said that his being uninsured is “very close to affecting the rates of insurance and the costs of providing medical care in a way that is not true in other industries. That's my concern in the case.”

So he isn’t so sure after all. Those who were cheering on Tuesday could find themselves shocked if Kennedy actually votes to uphold the mandate. And that is crucial because several justices indicated during Wednesday’s argument that they believe a decision against the individual mandate would mean the whole statute should fall.

So the question of the constitutionality of the individual mandate takes on huge importance.

And the key issue raised repeatedly during Tuesday’s session was the question of “uncompensated care” – that is, the concern that people who don’t have health insurance will shift their costs of inevitable care to those who do have health coverage.

Justices repeatedly cited the $1,000 that every privately insured family pays to compensate for the care received by uninsured people – in aggregate, $43 billion a year, according to Congress’ “findings” justifying its passage of the law. The individual mandate is designed, as the health law’s defenders argue, to eliminate the problem of these “free riders.”

The question that Justice Kennedy still seemed to be wrestling with is whether or not in health care, these costs are shifted to someone else “in a way that is not true in other industries.”

The Galen Institute and several of our sister organizations submitted an amici curiae brief to the Supreme Court addressing precisely this issue and showing that the law actually exacerbates the problem of uncompensated care.